2400417 (Refugee) - [2025] ARTA 1353

2400417 (REFUGEE) [2025] ARTA 1353 (21 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2400417
Tribunal:General Member T Ellison
Date:21 May 2025

Place:Adelaide
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 21 May 2025 at 2:30pm
CATCHWORDS
REFUGEE – protection visa – Indonesia – religion and particular social group – Balinese Hindu married Chinese Buddhist and converted – husband’s debts, violence and cheating –applicant named as contact, guarantor or borrower – approaches from lenders and debt collectors – no approach to police because of fear of husband’s response – left relationship and returned at husband’s urging – debts recently paid off and no further contact from lenders – still formally married, intention to divorce and status as single divorced woman – consistent and credible evidence – country information – divorces difficult to obtain – domestic gender-based violence – delays and inconsistencies in enforcement of law and corruption – no state tolerance of domestic violence or systematic discriminatory implementation of law – complementary protection – real risk of significant harm – relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIMA v Khawar (2002) 210 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for review to the Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal).[1] This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
[1] See Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant, a national of Indonesia, applied for the visa on 6 October 2022. The delegate refused to grant the visa on the basis that her claimed fear of debt collectors was not for one or more of the reasons in s 5J(1)(a) of the Act and the applicant could obtain, from an authority of the country, protection such that there would not be a real risk of significant harm.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s background
The applicant is a [Age]-year-old female born in Denpasar, Bali, Indonesia.
The applicant married in July 2017 and arrived in Australia in September 2022.
The applicant is a national of Indonesia which is her ‘receiving country’ within the meaning of that term in the Act. There is no evidence that the applicant has a right to enter and reside in any country other than Indonesia and as such the exception in s 36(3) of the Act does not apply.
Before the Department
Protection visa application
In her protection visa application, the applicant claimed:
a.She married a man of a different religion 5 years ago and chose to convert her religion. This caused disputes with her family.
b.After getting married, she found out her husband had a lot of debt and she lost all her assets to cover his debts. Her husband continues to incur debts in her name and sell her belongings, and debt collectors have been terrorising her because of the loans.
c.Her husband has been violent to her and cheated on her and she was in hiding from him.
Supporting documents
The applicant provided copies of:
a.her birth certificate;
b.her national ID card; and
c.the biodata page of her Indonesian passport recording her nationality as ‘Indonesia’.
The applicant was not invited to interview with the Department.
Before the Tribunal
Pre-hearing submissions
In a pre-hearing information form, the applicant elaborated upon the claims made in her protection visa application, confirming her fear of her husband and the effects this has had upon her health.
The applicant lodged the following documents in the Tribunal:
a.statement letter from the applicant’s father (with translation), providing 4 reasons for the applicant’s departure from Indonesia;
b.certification letter from the village head (with translation), confirming the applicant no longer lives in the village;
c.statutory declaration by the applicant;
d.photograph of injury to the applicant’s head; and
e.written submissions by the applicant’s representatives.
Hearing
The applicant appeared before the Tribunal on 8 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
At the hearing, the applicant provided copies of:
a.National Risk Assessment Principles: Quick reference guide of high-risk factors for domestic and family violence; and
b.extracts from an article entitled ‘Not there Yet’: Women Fleeing Domestic Violence & the Refugee Convention’.
Where relevant, the documentary and oral evidence is discussed below.
Analysis, reasons and findings
As can be seen above, the applicant expressed various fears in documents before the Tribunal, including from her husband, debt collectors, from her family due to non-acceptance of her conversion to Buddhism and as a single (divorced) woman in Indonesia.
At the hearing, I asked the applicant why she feared harm in Indonesia and what would happen to her. The applicant explained that she feared facing her husband again because of what he had done to her and she feared him treating her in that way again. The applicant also said that being a woman who has been married carries with it a stigma in Indonesia, which would make it difficult for her to start a new relationship or get a job. Further, she said Indonesia is majority Muslim country which would make it difficult for her to move anywhere else in Indonesia.
In summary, I found the applicant to be a credible witness. The applicant provided detailed evidence of her experiences in Indonesia. I view her claims as consistent across several years.
Husband
The applicant explained that she is Balinese Hindu and her husband is of Chinese ethnicity and Buddhist. Both are locals of Bali who have lived there their entire lives.
The applicant met her future husband in April 2012 on an online dating app, and they started dating in July 2012. During the period they dated, the applicant claims she was well treated and she had no clue what was to come.
The applicant and her husband married in July 2017. At the hearing, the applicant showed the Tribunal her marriage certificate on her mobile phone.
The applicant claimed that in relation to the marriage, her parents were not supportive. This was because her mother did not like her husband and her father did not agree with the applicant changing religions to be with her husband. The wedding was held at a Buddhist temple and the applicant had to pledge she had converted to Buddhism.
The applicant first lived with her husband after they got married. The applicant described her first couple of months of marriage as happy, but after that she realised he had a lot of ‘secrets’. This included debts, which are discussed further below.
As the marriage progressed, the applicant explained how she was subjected to various forms of abuse by her husband.
The applicant claimed her husband would require her to tell him her social media passwords, would check her messages on social media and if she changed her password, he would become angry and accuse her of cheating on him.
The applicant also claimed he would be verbally abusive in public and private, would insult her, and humiliate her in front of friends.
She described him cheating on her and being blamed for this because she was working too much and didn’t take care of him. The applicant worked during the marriage; whilst in Bali, the applicant worked in a [workplace 1], at [a workplace 2] as [an occupation], in [work tasks] at a [company], and in a business operating in the areas of [services].
The applicant also described that her husband would tell her she had to obey him as his wife and she could not tell people about their relationship problems. She stated that once you are part of your husband’s family, even your parents do not get involved. She found this isolating.
The applicant also described how she has been physically abused if she would argue back or disagree with her husband. The applicant said she was assaulted on multiple occasions. She provided a photograph of an injury to her head which she claimed was caused by her husband but she could not clearly remember the incident from others. She said she thought it may have been when she contacted a woman her husband had been seeing and her husband pushed her head into the corner of a wall in their kitchen. She described taking sleeping pills before her husband returned home him to avoid him.
The applicant claimed she left her husband on 3 occasions:
a.In May 2019 she found out he had been cheating and stayed at her cousin’s house for one night and her parent’s house for 2 nights. She pretended this was because she missed her younger sister and wanted to see her. She stated her husband showed up at her work and begged her to come home, and she did so.
b.In June 2019, she was with her husband in their flat when they were arguing and she could sense he would become violent. She waited until he left and took her clothes and stayed with a friend. She returned home when she felt safe.
c.In August 2019 she left her husband for 3 months. She moved to a different area of Denpasar and rented a room and arranged her own bank account. She said her husband would repeatedly come to her workplace to get her to come home, and he convinced her to do so.
The applicant said she did not go to the police because she was worried they would not process her complaint and her husband would find out she went to the police, which would create another problem for her.
The applicant eventually confided in a friend about the abuse, who in turn told the applicant’s parents. In 2021, the applicant’s mother took out a loan for the applicant to obtain a visa to come to Australia.
Debts
The applicant claimed that her husband took out personal loans and online loans in Indonesia. The applicant would be included as an emergency contact or guarantor, but as debts accumulated, she was told her name had to be used as the borrower.
The applicant claimed that her husband took her identification, credit card and sold her possessions including jewellery.
The applicant stated that she began receiving messages from lenders, from multiple phone numbers, requesting payment. She also received phone calls at work. The applicant claimed debt collectors came to her work, and her relatives and parents’ home.
Time in Australia
The applicant arrived in Australia in September 2022. She initially intended to come to Australia for 1 to 2 weeks for ‘healing’. She told her husband she was going to Australia for work for 1 week. However, she said she felt safe and applied for the protection visa in October 2022.
The applicant explained that she was initially assisted by a person claiming they could find her work on a [workplace]. However, she claims to have had some challenges in Australia. The applicant paid about $2500 and travelled to a regional town by bus to work on a [workplace]. However, the house she was promised was abandoned and without any furniture. She stated she moved to work on other [workplace]s but living arrangements were unsafe and she escaped an assault, faced sexual harassment and has not been paid in full for her work.
In relation to her husband, she claimed to have obtained a new SIM-card in Australia. She claimed her husband tried to contact her through WhatsApp and email and she often avoided his calls but initially kept him updated about bills that she paid. The applicant further stated her husband made requests for money and made her feel guilty for not fulfilling her responsibilities as a wife.
The applicant says she finally ‘blocked’ him in November 2022 in all forms of communication including social media and email. She has not spoken to him since. She claimed he has messaged friends and family to try and find information about her whereabouts since.
In relation to debts, the applicant said in her first year in Australia she paid back AUD12,000 against debts which were in her name or linked to her parent’s address. She said her debts were paid off early in 2025 and she has not heard from debt collectors since then. When asked if she had any fear from debt collectors now, she said she was not sure if her husband had incurred any further debts and said she said she did not know if she would be contacted again. She said she had deactivated her previous phone number.
Findings
I accept the applicant (a Balinese Hindu) married her husband (Chinese Buddhist) in July 2017. I accept the applicant’s parents were not supportive of this marriage, including because the applicant’s husband was Buddhist. I accept when the applicant commenced living with her husband, he mistreated her including by physically assaulting her, verbally abusing her, monitoring her use of social media, cheating on her, and obtaining loans in her name and pawning her possessions. I accept she did not go to the police because she was worried no action would be taken and her husband would find out about it, which is consistent with DFAT’s information about the reluctance of victims of domestic violence in Indonesia to come forward.[2] I accept she was stressed and felt depressed.
[2] DFAT, DFAT Country Information Report Indonesia, 24 July 2023, [3.88].
I accept the applicant left her husband on 3 occasions as claimed, but on each occasion returned to live with him. I accept she left for good and came to Australia in September 2022.
I accept that the applicant last spoke to her husband in November 2022 at which time she ‘blocked’ him on social media and email and changed her phone number. I accept the applicant has continued to pay off debts incurred by her husband which were in her name or linked to her parent’s address and has now paid them off in full.
If the applicant is returned to Indonesia, as she said at hearing and I accept, she would be considered to still be married to her husband and have an obligation to him. I accept she would return to Denpasar, Bali, being the only place she has lived in Indonesia and where her family reside.
I accept that the applicant wants to divorce her husband. At the hearing, I explored with the applicant what that would involve and what she knew about obtaining a divorce. She said in around 2019 or 2020 she obtained divorce forms which caused her husband to become angry. She claimed that from what she knows, a divorce is a long process involving a family meeting. She explained that it is a ‘scene’ if people know about what happens in a couple’s house, and the families will first meet and try to find a resolution. For example, she said if the wife is working too hard and not taking care of her husband, the families will discuss this and one family will then watch over to ensure it does not happen again.
She said a divorce may involve a village chief and if there is no agreement then an application to court and mediation. She further stated after divorce, a woman must undergo a spiritual ceremony at her ex-husband’s house and her parent’s house (signifying her return to her family) and only then can she be accepted back into the community.
As DFAT advises, divorces in Indonesia can be difficult to obtain. Indonesia does not have no fault divorce and women may have difficulty proving the grounds for divorce.[3] A divorce is to be carried out before a session of a Court of Law after the Court has endeavoured and been unsuccessful in bringing about conciliation between the parties.[4]
[3] DFAT, above n 2, [3.94].
[4] The Marriage Law of the Republic of Indonesia No 1 of 1974 art 39(1).

I find that if the applicant returned to Indonesia, whilst there are safehouses in some parts of the country for women fleeing domestic violence,[5] she would likely live with her parents. I find that her parents are currently supportive of her and would support her if she returned to Indonesia. I accept the applicant does not wish to live with her husband and would not do so if returned.
[5] DFAT, above n 2, [3.92].
Whether the applicant was to attempt to obtain divorce or not, I find that she would remain formally married for the reasonably foreseeable future. Whether the applicant was to attempt to obtain divorce or not, I find that the applicant’s husband would learn of her return to Indonesia through mutual friends or family and approach the applicant. I accept he will not wish for the applicant to live with her parents. I accept he will not wish to divorce. I find he would demand the applicant return to live with him. The applicant may relent, or may not. In either case, I find that there is a real chance and real risk that the applicant’s husband would subject her to physical assaults and verbal abuse, as he has done before, now or into the reasonably foreseeable future.
I accept the applicant has paid off debts which were in her name or linked to her parent’s address. There is insufficient reason to conclude her husband has incurred further debts in the applicant’s name, or would do so in the future, and I do not accept that he has done so or would do so in the future. I find she would not be contacted or approached by any lenders if returned to Indonesia.
Refugee criterion
The applicant argued that she was a member of 2 particular social groups, namely female victims of domestic violence and single women. As I raised at the hearing, upon a return to Indonesia now and into the reasonably foreseeable future, given that any divorce seems to be difficult and likely to be protracted, she would be viewed by society and her husband as married and it is unlikely she could be described as single. The applicant did not argue against this. I accept that female victims of domestic violence constitute a particular social group and the applicant is a member of such a group.
I am also satisfied that there is a real chance that the applicant will face serious harm within the meaning of that term in s 5J(4)(b) of the Act now or into the reasonably foreseeable future. However, as I raised at the hearing, the applicant’s membership of the particular social group must be the essential and significant reason for the persecution involving serious harm, as required by s 5J(4)(a) of the Act.
At the hearing, I explored with the applicant why her husband treated her like he did. The applicant said that he wanted a wife who would obey him and she was expected to agree with everything he said. The applicant confirmed the couple had various issues in their relationship including her husband’s gambling, his claim that she worked too much (despite needing that money to pay the household bills), his cheating on her with other women, and the fact he claimed she should take care of herself and look good but he would also complain she was spending too much money on this. She thought the injury to her head depicted in the photograph before the Tribunal was caused after she contacted a woman her husband had been seeing. The applicant also referred on multiple occasions to her husband’s temperament, how he would easily lose his temper and his anger.
The applicant appeared to accept, and I find, that the applicant would not be targeted by her husband for reason of her membership of the particular social group of female victims of domestic violence. Rather, the applicant argued that the state’s response to domestic violence constitutes systematic and discriminatory conduct against her as a member of that group.
Where a state tolerates or condones domestic violence, and implements the law in a systematic discriminatory way, as opposed to being merely incompetent or inept in its response, domestic violence may amount to persecution.[6]
[6] Minister for Immigration and Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1, [26].
Indonesia continues to have a significant problem with domestic gender-based violence, with a rise in reports in 2022.[7] The applicant referred to cultural norms and social acceptance of such conduct,[8] The Marriage Law of the Republic of Indonesia No 1 of 1974 (the Marriage Law), which provides in article 31(3) that the husband is the head of the family and the wife is the mother of the household, and that domestic violence laws fell short of addressing domestic violence including in relation to coercive control. Further, the applicant argued there is unreliability of police and the judiciary, inconsistency in enforcement of law and corruption.
[7] United States Department of State, Indonesia 2023 Human Rights Report, 22 April 2024, 42; OECD Development Centre, SIGI 2023 Country Profile Indonesia, 19 March 2024, 11.
[8] OECD, above n 7, 11.
According to DFAT, Indonesia’s Constitution enshrines many fundamental human rights, including the right to life and freedom from torture and enslavement.[9] The Indonesian National Commission on Human Rights (Komnas HAM) monitors human rights and conducts education campaigns. The body has a good reputation and a history of raising and investigating human rights matters. Indonesia has a National Commission on Violence Against Women (Komnas Perepuan) which conducts research, disseminates information, monitors women’s rights, advises executive, legislative and judicial institutions. DFAT assesses that it has a good reputation and is effective in advocating for laws and policies to prevent violence against women.[10] Violence against women, such as spousal rape and domestic violence is unlawful. Further laws were passed in April 2022 outlawing forced marriage, and some kinds of assault and harassment, including the circulation of non-consensual material.[11] These laws strengthened the legal framework for survivor’s ability to seek justice.[12] There are services for women experiencing domestic violence, including shelters that are government-run, although there are capacity issues and they are not available in every part of the country.[13]
[9] DFAT, above n 2, [2.30].
[10] Ibid [2.31].
[11] Ibid [3.86].
[12] United States Department of State, above n 7, 41.
[13] DFAT, above n 2, [3.92].
There is clear evidence that Indonesia’s national police force has differing levels of education and training within it, and a reputation for corruption, that justice is often not possible due to lengthy delays in the justice system and a lack of legal aid,[14] which may demonstrate that the state’s response is incompetent or inept and lacks effective enforcement of the law.[15] There is no doubt room to do more to combat domestic violence, including in Indonesia.
[14] Ibid [3.88]-[3.89], [5.1]-[5.9]
[15] United States Department of State, above n 7, 41.
However, based on the evidence before me, I am not satisfied that there is state tolerance or condonation of domestic violence or systematic discriminatory implementation of the law. I am not satisfied that the reason for harm that would be perpetrated upon the applicant by her husband would be essentially and significantly for the reason of her being a female victim of domestic violence. I am not satisfied that the serious harm that the applicant would face is essentially and significantly for any of the reasons in s 5J(1)(a) of the Act. Accordingly, I am not satisfied that the applicant is a refugee or meets s 36(2)(a) of the Act.
Complementary protection criterion
Above, I have found that if returned to Indonesia, there is a real chance and real risk that the applicant’s husband would subject her to physical assaults and verbal abuse, as he has done before, now or into the reasonably foreseeable future.
I am satisfied that such assaults would involve severe pain and suffering, both physical and mental, being intentionally inflicted upon the applicant. I am satisfied that such assaults are inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR) and do not arise only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. I am satisfied that such assaults amount to cruel or inhuman treatment or punishment within the meaning of s 5(1) of the Act, and therefore significant harm within the meaning in s 36(2A) of the Act. I am satisfied that the real risk of the applicant suffering significant harm is a necessary consequence of her being removed to Indonesia.
At the hearing, I explored with the applicant whether she could safely re-locate to another area of Indonesia, such as Jakarta. If the applicant was to re-locate to another part of Indonesia, rather than returning to her home area, she would be unable to secure a divorce. She would be separate from, but still technically married to, her husband. As DFAT reports, it is difficult to live as a single woman in Indonesia (whether through choosing to remain unmarried, or through widowhood or divorce) and is very uncommon.[16] At the hearing, the applicant explained that negative assumptions are made about divorcees (and, I find, also to married persons living separately from their husbands), which makes it extremely difficult to enter a new relationship and even obtain a job. DFAT confirms that women who are not married may face social stigma or harassment, including sexual harassment, if they are divorced.[17] The applicant has lived her life in Indonesia in Bali and this is where her family reside. DFAT provides that relocation to Jakarta by single women may not be an option where they are financially dependent on their families or lack work connections in Jakarta.[18] There is no evidence the applicant has any work connections in Jakarta, and she would be dependent on her family, at least initially, should she return. At the hearing, the applicant further explained that as Indonesia is majority-Muslim (according to DFAT, 87.2%),[19] which she is not, it is difficult to join a new community which adhere strictly to their own religious and cultural practices. Noting those many difficulties the applicant would face, and in accordance with s 36(2B)(a) of the Act, I am not satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that she would suffer significant harm.
[16] DFAT, above n 2, [3.93].
[17] Ibid [3.93]. See also Monika Wirarnita, Nicholas Herriman and Petra Mahy, Living in the shadows of the Indonesian mother: the stigma, shame and opportunities as a widow or divorcee, The Conversation, 20 December 2019, < accessed 9 May 2025.
[18] DFAT, above n 2, [3.93].
[19] Ibid [3.18].
Further, I explored with the applicant at hearing whether she could obtain protection from the authorities. The applicant referred to many of the challenges referred to by DFAT that victims of domestic violence perceive in reporting their experiences.[20] The applicant explained that police may accept a report, but not progress it unless money is paid. She also explained that police would try to mediate the matter between the families, causing potential hostility. She was generally worried about her husband finding out about any report. In the applicant’s case, the applicant could seek protection of the police whilst she lives with her parents. However, as referred to above at paragraph 65, police competence varies, they have a reputation for corruption, and the legal system faces long delays. I am not satisfied that reporting the domestic violence to police would reduce the real risk of significant harm to her. I am not satisfied the applicant could obtain protection in a safehouse, which are not available in every part of the country.[21] I am not satisfied that the applicant could obtain protection from any other authority of the country. Therefore, I am not satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm for the purposes of s 36(2B)(b) of the Act.
[20] Ibid [3.88]-[3.89].
[21] Ibid [3.92].
Finally, I am not satisfied that the real risk is faced by the population of the country generally and not by the applicant personally, for the purposes of s 36(2B)(c) of the Act.
In summary, I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia, there is a real risk she would suffer significant harm. I am not satisfied that the circumstances in s 36(2B) apply. I am satisfied that s 36(3) of the Act does not apply. Therefore, I am satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act and Australia has protection obligations in relation to her.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date(s) of hearing:  8 May 2025
Representative for the Applicant:              Ms E Marinas and Ms S Vaughan, Legal Services Commission South Australia
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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